GAY MARRIAGE DEBATE INCLUDES QUESTIONS OF RELIGIOUS LIBERTY: From the Christian Science Monitor

...In Massachusetts, the only state where the court has already mandated same-sex marriage, the deliberations have a particular urgency: Lawmakers last week cobbled together a compromise amendment designed to provide an alternative to the court ruling by banning gay marriage but establishing same-sex civil unions with the same legal rights.

To many, it's a compromise--albeit a shaky one that pleases neither side and may ultimately not pass--designed to shelter an institution that has strong religious significance.

But in practice, some legal scholars warn that the compromise could itself pose a threat to religious liberty, by putting state pressure on churches to accept the concept of civil unions to some degree.

The amendment "may do ... more serious and permanent harm than [the court ruling] itself from the standpoint of protecting the religious liberty of individuals, churches, and other religious organizations," a group of experts from Harvard and other law schools told the Massachusetts Catholic Conference, the church's public policy arm.

The scholars' key concern: introducing "civil unions" into the constitutional lexicon. "It gives wide-ranging license to judges to enforce a new social norm on organizations touched by the law," they said. "Precedent from our own history and that of other nations suggests that religious institutions could even be at risk of losing tax-exempt status, academic accreditation, and media licenses, and could face charges of violating human rights codes or hate speech laws."

Some experts express similar concerns, while others dismiss them as without merit, given constitutional guarantees of religious liberty.

John Witte, professor at Emory University Law School in Atlanta, sees the possibility of an eventual collision between religious liberty and sexual liberty norms, with religious bodies finding it "much more difficult to opt out of recognizing a constitutionally mandated form of alternative union." Eventually, gay couples might also seek "protection against church bodies in employment or enrollment decisions, in clerical appointment decisions, associational decisions with schools, charities, etc.," he adds.

There is wide agreement that a minister, priest, or rabbi has the discretion to decide whom they will marry, and cannot be forced to perform any service. ...

Bill Duncan, visiting law professor at Brigham Young University in Provo, Utah, sees other scenarios where a problem could arise. "A church itself may not be required to give benefits, but other church operations--charities, bookstores, parachurch groups--might be asked to."

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posted by Eve at 6:37 PM | link

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